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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

21 FLRA No. 76
NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION,
MEBA, AFL-CIO
Union
and
DEPARTMENT OF COMMERCE,
NATIONAL WEATHER SERVICE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION
Agency
Case No. 0-NG-627
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 71-5(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of the following Union Proposal:
Students at the (National Weather Service Training) Center
shall be given the option of staying at housing of their choice in
the Kansas City area. In addition, each student who elects to
stay at housing other then the Downtown Travelodge shall be given
the $11.85 which would have been paid to the Downtown Travelodge
(by the Agency) for their housing, to use in paying for whatever
housing the student selects. This $11.85 would be in addition for
the $23.00 per diem given to each student for food and
miscellaneous expenses.
II. Positions of the Parties
The Agency essentially contends that the proposal is nonnegotiable
for the following reasons. First it conflicts with management's right
to determine its budget under section 7106(a)(1) of the Statute, because
the increase in cost associated with the proposal is significant and is
not offset by compensating benefits. Second, the Agency asserts that
the proposal is inconsistent with its right under 41 U.S.C. Section
252(a) to contract for service. Third, the Agency states that the
proposal is inconsistent with a policy determination it made pursuant to
its authority under 5 U.S.C. Section 5911(e) that employees may be
required to use Government furnished quarters when they are students at
the training center if the Agency head determines it is necessary.
Finally, the Agency head determines it has a "requirements" contract
with a private contractor which is consistent with 41 C.F.R. Section
1-3.409(b). According to the Agency, a "requirements" contract requires
an employer to have all its needs supplied exclusively by the
contractor. In the Agency's view, its contract legally prevents it from
purchasing its housing needs from anyone but the private contractor,
thereby making it impossible for the Agency to agree to the terms of the
proposal without risking a lawsuit.
The Union contends that the proposal is not intended to cost the
Agency any more than it has already determined to spend. The Union also
contends that the proposal would not violate law or regulation. It
argues that the contract the Agency has negotiated for housing its
employees/students may be altered or terminated at its sole discretion,
and that the contract does not force the Agency to compel its
employees/students to lodge with the private contractor.
III. Analysis
The Union's proposal would allow employees who are students at the
National Weather Service Training Center to arrange for their own
housing instead of being required to stay in Agency-arranged housing.
The Proposal further provides that the Agency would pay to employees who
arrange their own housing the same amount of money as the Agency pays
per employee for the housing it has arranged. The housing allowance
would be added to the regular per diem given to all students for food
and other expenses.
Right To Determine Budget Under Section 7106(a)(1)
In support of its position that the proposal would infringe upon
management's right to determine its budget, the Agency cites American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright Patterson Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of
Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In that
decision the Authority determined the conditions under which an
otherwise negotiable proposal could be found to violate an agency's
right to determine its budget under section 7106(a)(1) of the Statute.
The Authority stated, in relevant part, that such a determination will
be made only where an agency makes a substantial demonstration that a
proposal would require a significant and unavoidable increase in costs
which is not offset by compensating benefits. The Authority finds in
this case that the Agency has failed to demonstrate that the proposal
would require any increase in costs whatsoever.
B. Proposal's Consistency With 41 U.S.C. Section 252(a), 5
U.S.C. Section 5911(e) and 41 C.F.R. section 1-3. 409(b)
The Agency's contentions concerning the proposal's alleged
inconsistency with law, and with the Agency's policy determinations made
under the authority of law, are all without merit. 41 U.S.C. Section
251(a) provides that "Executive agencies shall make purchases and
contracts for property and services in accordance with the provisions of
this chapter and implementing regulations of the Adminstrator." The
proposal would not have prevented the Agency from contracting, as it
did, with a private contractor, nor would it require the Agency to
contract for any housing when the Agency had not already determined to
do so. The proposal would only provide employees/students with the
option of arranging their own housing and being reimbursed up to the
cost of Agency-furnished housing.
5 U.S.C. Section 5911(e) states that "(t)he head of an agency may not
require an employee. . . to occupy quarters on a rental basis, unless
the agency head determines that the Government cannot adequately be
protected, otherwise." The fact that the head of the Agency in this case
made a previous policy determination consistent with the terms of 5
U.S.C. Section 5911(e), does not settle the issue of whether the Agency
is barred from negotiating over the proposal. For the proposal to be
outside the duty to bargain, it must be inconsistent with law (or
Government-wide regulations or agency regulations for which there is a
compelling need). The Agency does not contend, nor does it appear, that
the proposal is inconsistent with 5 U.S.C. Section 5911(e), or that 5
U.S.C. Section 5911 requires the Agency to find it necessary that its
employees/students reside in Agency contracted housing. The Agency
argues only that the proposal is inconsistent with a policy
determination it made pursuant to 5 U.S.C. Section 5911(e). /1/ Since
the policy determination was a matter strictly within the discretion of
the Agency, and concerned conditions of employment affecting unit
employees, the Agency's argument does not provide a basis for finding
the proposal nonnegotiable.
Finally, 41 C.F.R. Section 1-3.409(b) sets forth the description and
application of "requirements" contracts. /2/ Although the Agency
asserts that its contract in this case is a "requirements" contract
consistent with this regulatory provision, the proposal would have to be
inconsistent with the Code of Federal Regulations in order to be barred
from negotiations. The Agency has not shown this. Further, in
agreement with the Union, the Authority finds that regardless of whether
the contract it has negotiated is a "requirements" contract, the
contract has provisions which specify that it may be altered or
terminated at the will of the Agency. Therefore, there is no
inconsistency between the proposal and 41 C.F.R. Section 1-3.409(b), nor
is there any other apparent reason why the proposal should be barred
from negotiations.
IV. Conclusion
For the reasons stated in the foregoing analysis, the proposal is not
inconsistent with the Agency's right to determine its budget, under
section 7106(a)(1) of the Statute, nor is it inconsistent with Federal
law or regulation. /3/ Moreover, the Agency's view that the proposal
conflicts with a policy determination made under the authority of law
provides no basis for finding the proposal nonnegotiable. Therefore,
the Authority concludes that the proposal is within the duty to bargain.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the Union's
proposal. /4/
Issued, Washington, D.C., April 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Nor does a General Accounting Office (GAO) Memorandum
(Certificate of Settlement, Claim No. 2-2624287 (March 30, 1978)
referred to by the Agency support the Agency's conclusion that it is
barred from negotiating the Union's proposal. The GAO memorandum would
at most indicate that the Agency has satisfied the finding of necessity
required by 5 U.S.C. Section 5911(e), but cites to no law or regulation
preventing the Agency from complying with the provisions of the
proposal.
(2) This section of the C.F.R. has been replaced by regulations found
at 48 C.F.R. Chapter 1. However, the new regulations do not apply to
this case as they only govern contracts executed after April 1, 1984.
(3) The Authority notes that the proposal is consistent with the
applicable federal Travel Regulations. In this regard, although the
Agency has the discretion to bargain over the proposal, it may require
proof that students who elect to stay in alternative housing are paying
the negotiated amount. The Agency may also adjust the per diem amount
for food and miscellaneous expenses based on circumstances resulting
from the use of other lodging, for example, when a student elects to
stay with friends or relatives at no cost.
(4) in deciding that the proposal is within the duty to bargain, the
Authority makes no judgment as to its merits.